Implications of Kenya’s New
Constitution to programming of
health services
Originally presented at a meeting on ‘Understanding
the implications of the articles on Reproductive
Health in the Kenya Constitution’, Crowne Plaza
Hotel, Nairobi 24-25 February, 2011
by
Japheth Mati MD
Overview
• The presentation seeks to contribute to a factual
understanding of health related provisions in the
New Constitution, and opportunities created for
enhancing health care provision
• It seeks to identify opportunities for
implementation of these provisions in the health
sector, specifically in plans and interventions for
the benefit of all in need of health services.
• Overall, health providers need to identify
opportunities that may emerge from the
Constitution, for enhancement of health
(including RH) services.
Right to Health
The Constitution of Kenya captures
the concept of ‘health as a human
right’ in Art 43 (1)
The concept of health as a human righthistorical background
• World Health Organisation’s Charter (1946)
Preamble: Health is a fundamental right of every human being
without distinction of any kind.
• The Universal Declaration of Human Rights
(1948) Art 25: Everyone has the right to a standard of living
adequate for health and well-being of himself and his family.
• International Covenant on Economic, Social
and Cultural Rights (1966) Art 12: the right of everyone
to the enjoyment of the highest attainable standard of physical and
mental health.
The concept of health as a human righthistorical background Cont’d
• The Declaration of Alma Ata (WHO, 1978)
• The Program of Action of the International Conference on Population
and Development (ICPD) (Cairo, 1994):
• The Platform of Action of the Fourth World Conference on Women
(Beijing, 1995):
• The International Convention on the Elimination of All Forms of
Racial Discrimination (1965), Art 11
• The Convention on the Elimination of All Forms of Discrimination
against Women (1979) Art 12
• The Convention on the Rights of the Child (1989) Art 24
The recurrent message
 Everyone has the right to a standard of living adequate for
attainment of the highest level of physical and mental health
Provisions in Art 43 (1) of the
Constitution of Kenya
Every person has the right—
(a) to the highest attainable standard of health, which
includes the right to health care services, including
reproductive health care;
(b) to accessible and adequate housing, and to
reasonable standards of sanitation;
(c) to be free from hunger, and to have adequate food
of acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.
Other guarantees in the Constitution that
are relevant to health care
In addition to Article 43 (1) (a), the
Constitution also guarantees:
• To nurture and protect well-being of all (Preamble).
• Implementation of international/regional conventions
and commitments (Art. 2 (6))
• Respect and protection of dignity for every person
(Article 28)
• Equality and freedom from discrimination (Article 27)
• Emergency medical treatment (Article 43 (2))
Implications of Article 43 (1) to
health care programming
• Not only is health care (including RH care) a right,
access to quality health services becomes a right
• Not only is access to adequate housing and
reasonable standards of sanitation a right, access to
a healthy environment becomes a right
• Not only is access to food a right, everyone has a
right to good nutrition
• Social security is a right; can social health insurance
also be considered a right?
Equity in health care programming
• The Right to Equality and freedom from
discrimination (Art. 27) encompasses within itself
the right of the poor and marginalised persons to
adequate/quality health care regardless of their
ability to pay.
Right to life
Article 26
Article 26:
(1) Every person has the right to life.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally,
except to the extent authorised by this Constitution or
other written law.
(4) Abortion is not permitted unless, in the opinion of a
trained health professional, there is need for emergency
treatment, or the life or health of the mother is in danger,
or if permitted by any other written law.
Remember the Big Debate in the run up to the Referendum, especially
around sub-Articles 26 (2) and (4).
On The Big Debate
‘NEW ABORTION LAW IS STILL BAD
FOR WOMEN
Whichever way the referendum will go, abortion may still be
the only birth control option available since many
[women] lack access to contraception’
Japheth Mati in STAR Thursday 29 April 2010
Article 26 (4)
• “Abortion is not permitted unless, in the opinion of a
trained health professional, there is need for
emergency treatment, or the life or health of the
mother is in danger, or if permitted by any other written
law”.
Arising from Art.26(4), abortion may be
granted if:
• (a) There is need for emergency treatment, or
• (b) Life or health of the mother is in danger.
Note:
• (i): (a) and (b) mean the same- emergency treatment always implies
danger to life or health!
• (ii): Recognition of “life OR health” as ground for abortion is an
advantage over what exists in Section 240 of Penal Code- “life” only.
• (iii): MPDB Code of Professional Conduct and Discipline considers
“health of the mother or baby” (legal basis?)
A number of questions arise from Art
26(4)
1.
Who is a trained health professional?
2.
At what stage is emergency treatment a must?
3.
What constitutes danger to life of the mother?
4.
What constitutes danger to health of the mother?
Questions arising from Art 26(4) (Cont’d)
5.
Is there any emergency that does not threaten life
or health of the mother?
6.
What definition of ‘health’ is implied here? (NB: WHO
definition of health includes mental and social wellbeing)
7.
8.
Is there a need for a list of conditions (or
situations) that may necessitate emergency
treatment?
etc.
Questions arising from Art 26(4) (Cont’d)
Note:
• Lists may provide examples of conditions that are
considered life-threatening, but must not preclude a
doctor’s clinical judgment.
• There is risk of Lists being interpreted restrictively,
or be considered exhaustive, when in fact they
cannot be.
Who among these is a “trained health
professional”?
Obstetrician Gynaecologist?
Registered medical practitioner?
Registered Clinical Officer?
Registered Nurse?
Registered Midwife?
Any health worker trained to competency?
All of the above?
(None of the above?)
MPDB guidelines on abortion
• “…. it is strongly advised that the practitioner consults with at
least two senior and experienced colleagues, obtains their
opinion in writing and performs the operation openly in
hospital if he considers himself competent to do so in the
absence of a Gynaecologist”.
Note:
• (i) MPDB does not restrict performance of TOP to gynaecologists only.
• (ii) One of the two colleagues is often a psychiatrist- requested
to establish risk to life of the woman
These MPDB guidelines may obstruct rather
than facilitate access to safe abortion services:
• Consulting at least two senior and experienced
colleagues- how possible in rural areas?
• Restricting performance of abortion procedures to
hospital- TOP often an OP procedure; not always
surgical!
• Psychiatric assessment- people resent psychiatric
label; expensive, unnecessary delay, and invasion of
dignity (Art 28)
Providing safe abortion services
within the law
• ‘Safe abortion’ services are those provided by trained health
workers using proper equipment and correct techniques, and
supported by policies, regulations and a functional health
infrastructure, including equipment and supplies (WHO).
• Performed under these conditions TOP is a safe medical
procedure
•
“Unsafe abortion” implies abortion performed outside of above
conditions.
A time for a paradigm shift?
• In order to minimize the problem of ‘unsafe abortion’
and its impacts there is an urgent need for a
paradigm shift in strategic emphasis (at all levels),
from the present day focus on ‘post-abortion care’ to
provision of ‘safe abortion services, within the law’.
• This is an opportunity provided for in Art 26 (4).
Women are often denied safe abortion
services within the law:
• Provider related factors:
o Lack of knowledge of the law, or failure to apply the law, by
providers
o Lack of adequately trained providers
o Negative provider attitudes, biases and conscientious
objection
o Lack of awareness (or neglect) among providers of their
ethical/legal obligations to provide women in need with
appropriate information on where safe abortion services
can be obtained.
Women are often denied safe abortion
services within the law (cont’d)
• Medical policies and practices:
o Insistence on unnecessary/outdated techniques e.g.
hospitalization, use of GA
o Opposition to task-shifting, and other regulatory
bottlenecks
• Community related factors:
o Lack of public information about the law
o Lack of awareness about facilities providing abortion
services
o Lack of awareness (among women) of need to report early
in pregnancy
Conclusions
1.
There are opportunities in the Constitution of Kenya for
enhancing health in general, including reproductive health
and rights of Kenyan women, despite the restrictive stance
on abortion.
2.
Health care providers must familiarise themselves with these
Constitutional provisions for effective implementation of safe
abortion services, and for avoidance of unwarranted access
barriers to what should be legally accessed by women in
need.
...Conclusion
3.
4.
The relevant regulatory authorities and professional bodies
have a responsibility to ensure their members are updated on
the provisions in the Constitution regarding health care
including reproductive health care.
The government has a responsibility to ensure safe abortion
services are equitably accessed by all women in need, by
promoting positive policies which eliminate unnecessary
access barriers to abortion services within the law.